Scalia: Throw Out Phony Undue Burden Test on Abortion Laws

The Washington Business Journal reports that U.S. Supreme Court Justice Antonin Scalia is prepared to discard a major precedent in abortion law when considering a future challenge to state regulations of abortion clinics, such as those approved in Virginia, Kansas and South Carolina.

A self-described “originalist”, Scalia addressed a meeting of Washington, D.C. attorneys Thursday, affirming that the 14th amendment confers rights to the states. But he repeated his long-held view that the Constitution is silent on abortion and that judges should stay out of the issue. Scalia mocked the so-called ‘undue burden’ principle on accessing abortion thusly:

In a mocking illustration of how the Supreme Court’s deliberation might go, he paints a picture of a future debate that he says has little to do with the law.

“Issue: Is that an undue burden on the woman’s constitutional right to an abortion? What do you think we’re going to talk about? Anything that makes any sense to lawyers?” he asked.

Here, he starts playing himself, wrestling with the question with the other eight members of the court: “I mean, so many doctors, so many nurses, I don’t think that’s an undue burden, do you think it’s an undue burden? Five hands it is, four hands it isn’t,” he goes on.

“That is not law, and darned if I’m going to do it. That’s the kind of thing I will not accept,” Scalia said.